Some Thoughts on DC Corruption
posted by Marvin Ammori
I’d like to thank the good folks at Concurring Opinions for inviting me to guest blog. The CoOp team has always been tremendously generous to me over the years–advising me on the teaching market (Dan, Frank), reading and commenting on draft law review articles (Dan), and reposting some of my thoughts (Danielle). And they’ve been kind enough to let me guest-blog for two months, as I was working through a law review article (grandly titled First Amendment Architecture–someone please publish it).
I tend to write about free speech and technology–like policies to ensure net neutrality, Internet access for all, or online innovation without permission. I am interested in media and the Internet because they are among our dominant means of speech, and speech is a basic input into all the decisions of our democracy. To the extent we design our speech systems more or less democratically, that affects all our policy decisions. I spent a few years in DC, working on media reform and network neutrality, among other issues.
I will write about technology soon. Today: corruption.
Almost all of us interested in these tech & speech issues are also interested in electoral/corruption issues. Some examples are Larry Lessig (world’s cyberlaw pioneer, now heading a project on corruption) and Josh Silver (former head of Free Press, a leading Internet policy group, once my client, who now heads a foundation addressing lobbyists’ influence).
We think about electoral/corruption issue, I believe, because influence in elections also affects all other policies. In addition, all of us have seen how corruption affects policy in our own tech space.
My main thought on the issue is simple enough.
I think quid pro quo corruption–like real corruption, the kind even Citizens United would ban–is pretty common. I do think it’s hard to stop. But we should accept facts. Maybe I’m wrong, but I’ll explain why I think it. Mainly it’s because of conversations I’ve had with staffers in DC, who would know best, but have little incentive to discuss this topic, and who also internalize some of DC’s customs.
Let me give some examples. And I give these examples as someone who hardly lobbied Congress–I sued companies before the FCC and advised FCC Commissioners. I hung out with congressional staffers largely socially, as friends, and I lobbied when I acted as the “legal expert” supporting a relationship lobbyist.
1. A young staffer who worked in DC, from about 2002 to 2008, once told me that quid pro quo corruption is common. Lobbyists often say, “We will hold a fundraiser [or two] for you, if you support this bill.” The staffer said it was rampant, common. After Abramoff, the staffer said, l0bbyists became slightly more subtle. This is hearsay, but hearsay I trusted. This was a close friend, with no reason to lie or exaggerate, who’d worked for several Congressmen.
2. Another congressional staffer showed me an email from a lobbyist for a company that spends a lot of money on lobbying, a very connected company. This company had stopped giving money to the staffer’s boss, a Congressman, because the boss had voted years earlier for a bill the company opposes. The lobbyist’s email explained that he hoped his company could give money to the Congressman again, but that he needed some evidence to show his company executives that the Congressman was worth supporting. So, if the Congressman would only support XYZ bill, then the lobbyist could show the executives that the Congressman was worth supporting… and start giving money again. Sounds like: “You support bill XYZ, we give you money.”
3. Notice, in example 2, that companies stop giving money when a Congressman opposes their bills. As another staffer told me, this notion is endemic. Congressmen and their staff–ever intent on raising money for the next election cycle–often decide which bills to introduce or support based on the fear that companies will stop giving them money. That is, staffers often say, “Oh no, if we introduce that bill [or cosponsor, etc.], then the credit card companies [or telecom, or oil, or coal] would get mad at us.” That is, quid pro quo is internalized. If you support the wrong bill, introduce the wrong ideas, you lose money. Corporations are giving now, and they’ll stop giving or they’ll oppose you and spend on your opponent. That’s what happens if you cross them. How is that not internalized quid pro quo–deciding bills based on whether or not the money keeps flowing.
4. In the news were a few examples, probably among many. Eleanor Holmes Norton left a “shocking” voice mail that probably didn’t shock DC, asking for funds. Maxine Waters suggested Comcast tried to bribe her for the Comcast-NBC merger.
I know these are a few examples, just anecdotal. But Congress has assembled far more examples, such as in the legislative history of the campaign finance legislation. I also know that many of my friends in DC have come to the same conclusion, and have become disillusioned. It’s depressing. And it helps explain why so many of our policies seem so incredibly biased towards the most powerful interests.
It also makes me skeptical of assumptions by judges and scholars–often meant out of what seems like apparent politeness–that most politicians are not corrupt. (They are probably good people, but they are in a corrupt system, full of implicit quid pro quo.)
Scholars often look for other explanations for why our system results in outcomes that seem corrupt–powerful enough explanations like public choice theory–as well as focusing on the problem of the mere “appearance” of corruption.
Despite the politeness, seventy percent of Americans think Congress is corrupt. They’re probably right. We might as well be honest about that .
March 16, 2011 at 10:38 pm
Posted in: Corruption, Election Law, Uncategorized
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Responses (10)
Frank Pasquale - March 16, 2011 at 10:47 pm
But haven’t political scientists shown that no one can prove money influences elections? (hahaha).
Seriously, great post. On a completely unrelated note, here’s the story of Evan Bayh:
http://www.washingtonpost.com/blogs/ezra-klein/post/the-sad-hypocritical-retirement-of-evan-bayh/2011/03/10/AB4MZzY_blog.html
Seth Finkelstein - March 17, 2011 at 1:09 am
I agree, but I think what you want is harder than it appears, because of the following reasonable-sounding propositions:
1) To accuse someone of being corrupt is a serious charge.
2) To make such a serious charge there must be specific evidence.
Thus, if you say “seventy percent of Americans think Congress is corrupt. They’re probably right.”, the counter is then “Name specific corrupt members and prove it.”.
Evan - March 17, 2011 at 1:22 am
Maybe we need more judges with experience outside the judiciary and have seen this in person.
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Brett Bellmore - March 17, 2011 at 6:33 am
“I think quid pro quo corruption–like real corruption, the kind even Citizens United would ban–is pretty common.”
That’s a bizarre statement to make, because, as I understand it, there was no quid pro quo involved in Citizens United. You had an organization, Citizens United, trying to raise money to air a movie with political salience. No donations to politicians, no exchange with politicians, it was all happening between regular citizens, it was merely speech that had to do with politicians. No different from Michael Moore raising money to air his latest travesty, in any relevant dimension. (What, Moore can’t bribe people with speech, but a corporation can?)
This seems to be a common theme in campaign ‘reform’, the effort to expand the definition of a quid pro quo to involve any independent action a politician might approve of, or disapprove of, regardless of whether the politician actually gets anything directly. Regardless of whether said independent action is the exercise of a civil liberty. To the point where I could be accused of attempting to bribe a Congressman simply by stating that I’ll speak well of him if he pursues policies I think are good.
It’s the “corruptionization” of free speech.
Clearly there is actual corruption in Washington. Refrigerators full of cash, the actual “quid” in quid pro quo. Studies show average Congressmen being eerily skilled stock traders… or engaged in insider trading. Unreported income, loans on special terms, vacation homes in Ireland… You can make an extensive list of these things, and never mention anybody but Charlie Rangel!
But, when campaign ‘reformers’ look at corruption in Washington, they have to see the nexus of it outside the actual officeholders. It’s an absolute necessity for them. After all, you’re pursuing legislation, and legislation which involves huge potential conflicts of interest. Incumbent officeholders making rules which have the potential to effect the outcomes of elections their own jobs depend on.
If the corruption were actually a matter of the incumbent officeholders themselves being corrupt, rather than them being innocents led astray by the private sector, the whole enterprise would be obviously hopeless. Worse than hopeless, just an opportunity for the corrupt officeholders to further entrench themselves, with “fighting corruption” as just a pretext. And our freedom of speech as collateral damage.
Which pretty much describes campaign ‘reform’, in practice. Which unfortunately has not stopped the reformers from being the front men for Congressmen intent on silencing interest groups, (No accident that McCain/Feingold didn’t distinguish between ADM and the NRA.) and fatally handicapping challengers.
I wish you’d just give the whole thing up.
TJ - March 17, 2011 at 6:59 am
I don’t think your examples actually represent “quid pro quo corruption–like real corruption, the kind even Citizens United would ban.” As I understand it, quid pro quo corruption these days means an explicit but secret agreement in a smoke-filled room and pretty much nothing else.
And the reasoning is something like this: lets say a single individual who donated $10 to Obama’s campaign in anticipation that Obama would close Gitmo. I take it this is not corruption. Lets say the same individual stops donating to Obama’s campaign, because Obama didn’t close Gitmo, and our voter is now sorely disappointed. I take it this is not corruption, either. And, finally, lets suppose the individual writes a blog post on DailyKos, saying “I was one of Obama’s supporters who donated money to Obama’s campaign because he promised to close Gitmo. I am sorely disappointed, and until he does I will not donate another cent.” I take it this would be protected free speech, and not felony based on the implied quid pro quo of “you close Gitmo, I give you money”.
The problem is that I am not seeing a easy line to draw between the individual donating $10 based on a politican’s votes; and a company that donates $10 million based on a politician’s votes. Fundamentally, I think this is what drives the 5-justice majority in campaign finance cases. To emphasize, I am not saying the individual and company are in fact the same. But the difference is only in magnitude and scale; and the law is exceedingly bad at drawing lines based on differences in degree.
Seth Finkelstein - March 17, 2011 at 7:07 am
> I wish you’d just give the whole thing up.
Serious question – should we just have “government” by auction to the highest bidder? I mean, if money is speech, why bother otherwise? Isn’t it extremely inefficient to pay middlemen to create a bunch of attractive lies and phony research? So why not just cut them out, and go straight to the bidding – which, by equivalence, is the same as the campaign?
If you’re straight-up for plutocracy, then defend its logical consequences, because that’s where we end up on the other side.
Orin Kerr - March 17, 2011 at 12:45 pm
TJ raises some pretty good points.
To add to them, what if the “very connected company” has its corporate center in the Congressman’s district, and therefore the jobs of many constituents depend on the company’s success? Or what if instead of the donor being a company, it is a wealthy individual who wants to support environmental causes? I would think the hard part is the line-drawing: This may be one of those situations in which the failure to regulate reflects the difficulty of drawing lines, especially when serious criminal liability is at stake.
Marvin Ammori - March 17, 2011 at 4:49 pm
I think TJ raises good points too. And Orin.
The line drawing is not easy.
Some lines are drawn based on the amount of money contributed. If a lobbyist hands a politician a pen, one assumes that this contribution will have little influence. And the 10$ to Obama for Afghanistan would have little effect.
(Then there are other lines to draw: expenditure/contribution, e.g.).
But can we take this in the other direction? (Not sure, will try an idea.)
What’s the difference between giving to a senator’s election fund or his checking account. Election funds go to many items that people spend their personal funds on (like food) and can be spent on luxury (like private jets and nice hotels when campaigning–and nice clothes, a la Palin).
And candidates often spend their own personal funds, especially wealthy candidates, so it is possible or likely that a candidate will write personal checks for the campaign.
How about lobbyists and companies donating to a politician’s wife’s charity–that employs the wife and pays her salary? There was some controversy about these arrangements a few months back. That isn’t much different from filling a politician’s own checking account, to the extent the contributions support a spouse’s salary.
In deciding which distinctions to make, and where to draw the lines, we would have to decide what the “rules of the game” are for elections. We could, in theory, adopt rules that incentivize politicians to act certain ways, to respond to certain stimuli–to smaller donors, to bigger donors, to individuals, and so on. The system we have set up–by Congress and the Supreme Court’s decisions–privileges big donors. And it does so in a way that strikes me as having a similar effect (and mindset for politicians) to a system permitting quid quo pro corruption.
But I don’t really disagree with TJ and Orin’s points.
Orin Kerr - March 17, 2011 at 7:26 pm
Marvin,
I think giving to a personal account is, in most cases, quite different from giving to a non-profit cause. The non-profit cause will spend the money on the non-profit cause, whereas money in a personal account can be kept or used as the person wishes. There’s a slight overlap, I agree, as when the non-profit cause spends money on things like food or clothes or hotels on the individual. But they seem relatively distinct.
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